PRACTICE AND PROCEDURE - application for stay of decisions - termination of tax agent registrations and imposition of four-year bans - whether stays should be granted pending decisions on applications for review - factors relevant to the granting of a stay - poor prospects of success and public interest considerations paramount - misleading statements to Board - stay applications refused

Administrative Appeals Tribunal Act 1975 (Cth) s 41

Tax Agent Services Act 2009 (Cth) ss 2-5, 20-5, 20-15, 30-10, 30-15, 30-30, 40-15, 40-5, 40-25, 60-125

Evans and Tax Practitioners Board [2019] AATA 1408

G J Brown & Co Pty Ltd at Tax Practitioners Board [2016] AATA 740

Le'Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890

Poidevin and Australian Securities and Investments Commission [2018] AATA 124

Scott and Australian Securities and Investments Commissioner [2009] AATA 798

Thomas and Tax Practitioners Board [2021] AATA 2164

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185

1. On 16 June 2022, the Tax Practitioners Board (the Board) terminated the tax agent registrations of Mr Jacob Thomas, Taxation and Accounting Australia Pty Ltd (TAAPL) and Accounting Solutions Australia Pty Ltd (ASAPL) to take effect from 1 August 2022, and imposed a four-year preclusion period during which Mr Thomas and ASAPL may not re-apply for registration. The Board's decisions were made under the Tax Agent Services Act 2009 (Cth) (the Act) and are referred to as the Decisions Under Review.
2. On 29 July 2022, Mr Thomas, TAAPL and ASAPL (together, the Applicants) applied for a stay of the operation of the Decisions Under Review (the Stay Applications) pursuant to

s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). On the same day, the Applicants also filed applications seeking a review of the Decisions Under Review (the Applications for Review). 3. On 12 August 2022, the Tribunal ordered, by consent, a stay of the Decisions Under Review on an interim basis until the Tribunal determines the Stay Applications. On 26 August 2022, the Tribunal varied the interim stay order of 12 August 2022 by including a condition that the Applicants must not take on any new clients. 4. The hearing of the Stay Applications took place in November 2022 following some unavoidable delays, including due to pre-arranged personal leave of Mr Thomas. There were then two hearing days - 4 and 16 November 2022 - because Mr Thomas gave oral evidence which had not been foreshadowed in the form of a written statement, and the Board wanted an opportunity to consider this before cross-examining him. Besides the T-Documents lodged on 23 August 2022, the Board also lodged Supplementary T-Documents on 3 November 2022 in relation to the Decisions Under Review. The Applicants also filed various documents in support of their Stay Applications. 5. The Applicants were not legally represented in relation to the Stay Applications although it was apparent that lawyers had previously been engaged in relation to, amongst other matters, the Board's investigations of the Applicants. 6. At the hearing, Mr Thomas submitted on behalf of the Applicants that if the Decisions Under Review are not stayed, the Applicants will suffer serious reputational damage and irreversible business destruction, even if the Applications for Review are favourable to the Applicants. The Board strongly opposed the Stay Applications and referred to the misconduct of the Applicants, especially their alleged misleading of the Board about certain matters, to which I will come shortly. The Board also contended the Applicants were recklessly indifferent as to the application of the tax laws to the affairs of clients and thus failing to observe the professional and ethical standards required of registered tax agents. 7. As these reasons will explain, the Stay Applications are refused. The prospects of success of the Applicants in relation to the Decisions Under Review appear to be very poor overall. Moreover, the public interest considerations strongly favour the refusal of the Stay Applications and outweigh other considerations to the extent they are in favour of the stays.

1. The Tribunal's power to grant a stay is set out in s 41(2) of the AAT Act which states as follows:

The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

2. The Tribunal's power to grant a stay arises only in respect of a decision reviewable by the Tribunal. The relevant decisions are the Decisions Under Review, namely, the decisions to terminate the tax agent registrations of the Applicants and to impose a four-year preclusion period before Mr Thomas and ASAPL may again apply for registration.
3. The Tribunal must be satisfied in every case that the stay is sought and granted for the purpose of securing the effectiveness of the hearing and determination of the reviewable decision. In determining whether a stay is appropriate, the Tribunal may consider a range of matters including the prospects of success; the consequences for the applicant if a stay is refused; the public interest; the consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not; whether the application for review would be rendered nugatory if a stay were not granted; and other matters that are relevant: see Scott and Australian Securities and Investment Commission [2009] AATA 798.

THE RELEVANT STATUTORY FRAMEWORK REGARDING TAX AGENTS

1. The Board made submissions to the effect that the Decisions Under Review and, in turn, the Stay Applications had to be understood in the context of the regulatory environment for tax agents as prescribed in the Act. Section 2-5 of the Act states that its object is "to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct".
2. Broadly, the regulatory regime is such that when the Board investigates and finds that the conduct of a tax agent breaches the provisions of the Act, then under s 60-125(2) of the Act, the Board must, relevantly, impose one or more sanctions or terminate an entity's registration. In the present matters, as described below, the Board imposed sanctions after an initial investigation of the Applicants and then, following a further investigation, decided to terminate the tax agent registrations of the Applicants.
3. Relevantly, ss 40-5(1) and 40-15(1) of the Act provide that the Board may terminate the registration of an individual and company registered tax agent, respectively if among other things, the tax agent ceases to meet one of the tax practitioner registration requirements in s 20-5 of the Act. An individual is eligible for registration as a registered tax agent if the Board is satisfied, among other things, that the individual is a fit and proper person. A company is eligible for registration as a registered tax agent if the Board is satisfied, among other things, that each director of the company is a fit and proper person. Section 20-15 of the Act sets out the criteria that the Board must have regard to in deciding whether it is satisfied that an individual is a fit and proper person, including whether the individual is of good fame, integrity and character.
4. Section 40-25(1) of the Act provides that, if the Board terminates the registration of a registered tax agent, the Board may also determine a period, of not more than five years, during which the tax agent may not apply for registration.
5. Part 3 of the Act contains the Code of Professional Conduct (the Code) which applies to all registered tax agents and BAS agents (collectively referred to as 'tax practitioners'): see

s 30-5. Relevantly, s 30-10 sets out the Code in the following definitive terms:

• (1) You must act honestly and with integrity.

• (7) You must ensure that a *tax agent service that you provide, or that is provided on your behalf, is provided competently.
• (8) You must maintain knowledge and skills relevant to the *tax agent service that you provide.
• (9) You must take reasonable care in ascertaining a client's state of affairs, to the extent that ascertaining the state of those affairs is relevant to a statement you are making or a thing you are doing on behalf of the client.
• (10) You must take reasonable care to ensure that taxation laws are applied correctly to the circumstances in relation to which you are providing advice to a client.

• (14) You must respond to requests and directions from the Board in a timely, responsible and reasonable manner.

1. Section 30-15 of the Act provides that if the Board is satisfied after investigating, that the tax practitioner has failed to comply with the Code, then the Board may do one or more things, including terminate the tax practitioner's registration under s 30-30.
2. As stated at the outset, on 16 June 2022, the Board decided to terminate the tax agent registration of Mr Thomas pursuant to s 40-5(1) of the Act on the basis he is not a fit and proper person, and to impose a preclusion period of four years from the date the termination of his tax agent registration takes effect during which he may not re-apply for registration, pursuant to s 40-25(1) of the Act. On the same day, the Board decided to terminate ASAPL's tax agent registration pursuant to s 40-15(1) and to impose the same preclusion period pursuant to s 40-25(1) of the Act. Additionally, the Board decided to terminate TAAPL's tax agent registration pursuant to s 40-15(1).

1. Mr Thomas has been a registered tax agent in Australia since mid-2006. He stated that he has been working in the accounting profession since 1972. In 1977, he became a qualified accountant. Mr Thomas worked in professional accounting firms in London and Malaysia before coming to Australia in about 1989. At or about that time, Mr Thomas was admitted as a chartered accountant with the Institute of Chartered Accountants in Australia and worked in companies and accounting firms. He later set up his own tax agent private practice.
2. ASAPL and TAAPL have been registered tax agents since about mid-2012 and 2019, respectively. At all material times, Mr Thomas has been a director of TAAPL, and he has been the sole director of ASAPL since 27 September 2021. Mr Thomas is one of three supervising registered tax agents for ASAPL although at the hearing Mr Thomas stated that ASAPL does virtually little tax agent work nowadays. He added that that the Applicants run their businesses "like a franchise operation" and that other offices rely on the Applicants to help them set up, and the Applicants also provide some supervision.
3. In early 2021, ASAPL and Mr Thomas were investigated by the Board in relation to a lack of supervision and control over employees. That investigation focused initially on Mr Jeremy Thomas, one of Mr Thomas's sons. Jeremy was an employee of ASAPL and was himself, at that time, a registered tax agent. However, Jeremy's tax agent registration was terminated by the Board and a five-year preclusion period was imposed from 11 June 2021 to 11 June 2026. Although Jeremy had disputed the Board's decision and applied to the Tribunal for an order staying the operation of the termination decision, he was unsuccessful. The Tribunal decided that "[g]ranting a stay where there has been fraudulent conduct over a long period would adversely affect the standing of the profession in the community": see Thomas and Tax Practitioners Board [2021] AATA 2164 at [22] (Senior Member Kelly). It is also noteworthy that Senior Member Kelly recorded in the written decision at [13] that, after the oral decision was made on 11 June 2021 to refuse the stay, Jeremy "asked the [Board's] legal representative if he could do administration work in the practice". This is noteworthy because the misleading statements made by the Applicants to the Board that are in issue relate to Jeremy's employment status, as detailed further below.
4. On 9 March 2021, the Board wrote to ASAPL and Mr Thomas advising that, on 18 February 2021, it had decided that ASAPL and Mr Thomas had failed to comply with the Code as set out in s 30-10(1) of the Act. The Board found that Mr Thomas had facilitated the lodgement of several mortgage applications between 2016 and 2018 containing incorrect income information for approximately 15 clients and allowed Jeremy to use his mortgage broker details to submit a client's mortgage application with false income documents. Consequently, the Board imposed sanctions on ASAPL and Mr Thomas including written cautions reminding them of their obligations regarding practice management and supervision and an order requiring Mr Thomas to complete courses of education in relation to practice management, ethics and the Code, with which he apparently complied.
5. It transpired that during the abovementioned initial investigation, Mr Thomas advised the Board by letter dated 10 February 2021 that he had terminated Jeremy's employment with ASAPL and that the termination was to take effect from 31 March 2021. However, based on Australian Taxation Office (ATO) employee wage data and ATO online services access and permissions records, the Board suspected that this was not the case. The Board also received a 'referral' from the ATO concerning ASAPL, namely, regarding allegations that pre-issue audits on approximately 15 of ASAPL's clients' income tax returns (ITRs) for the financial years ending 30 June 2019 and 2020 resulted in tax shortfalls and penalties. These clients of ASAPL had made claims for deductions without substantiation.
6. On 7 February 2022, the Board commenced a second investigation into ASAPL and Mr Thomas. On 1 April 2022, the Board issued letters to the Applicants outlining the alleged breaches of the Act and, on 27 May 2022, the lawyers then acting on behalf of the Applicants provided written submissions to the Board.
7. On 1 June 2022, in a further response to the Board, and in specific reference to the issue of whether Jeremy was still employed by ASAPL, the Applicants' former lawyers explained that at the time that Mr Thomas made the statement that Jeremy's employment was terminated, Mr Thomas fully intended, and did, terminate his employment with effect from 31 March 2021. However, due to unforeseen circumstances, including that Jeremy had unsuccessfully applied for over 25 jobs and become very depressed, and because Mr Thomas had lost a daughter some ten years earlier and did not want to lose his son, Mr Thomas decided to re-employ Jeremy as an 'office manager'. The lawyers also submitted to the Board that a former tax agent was allowed to work under supervision in an accounting firm. However, s 50-25 of the Act exposes an entity to civil penalties if it employs a terminated agent to provide tax agent services.
8. At the hearing, Mr Thomas claimed that Jeremy, in his role as office manager, was doing business development, and making appointments in the office as well as some data entry and bookkeeping but not performing tax agent services. Mr Thomas also stated that Jeremy's ATO portal login access had been cancelled and that his employment was only an interim measure until he found employment elsewhere. The Board observed that if Jeremy had been re-engaged as an 'office manager', which it did not accept to be the case, it is unclear why the lawyers had considered it necessary to submit that Jeremy was entitled to work under the supervision of a tax agent (see [24] above).
9. It is appropriate to also observe that the Board pointed out at the hearing that the first time that a copy of a new employment agreement with Jeremy as an 'office manager' was shown to the Board was on 31 October 2022 when it was filed by the Applicants with the Tribunal. That is, it had not previously been given to the Board during its second investigation, notwithstanding it was dated 1 April 2021. This omission supported the Board's concerns that Mr Thomas had not been transparent about Jeremy's employment. Another irregularity that surfaced at the hearing was that Jeremy's new employer was TAAPL, according to the copy of the employment agreement, whereas his former (and current) employer was ASAPL, according to the oral evidence of Mr Thomas. He did not elaborate other than to say TAAPL was "the wrong employing entity". Adding to the confusion, Jeremy's tax return for the financial year ending 30 June 2021 showed TAAPL as being his employer, whereas he had ostensibly been employed and terminated by ASAPL (see [22] above).
10. On 16 June 2022, having completed its investigations, the Board made the Decisions Under Review. The Board was satisfied that both Mr Thomas and ASAPL breached s 30-10(1) of the Code by falsely advising the Board on 10 February 2021 that they had terminated the employment of Jeremy and providing the Board with a copy of a letter to Jeremy dated 8 February 2021 signed by Mr Thomas as director of ASAPL stating Jeremy's employment was terminated with effect from 8 March 2021.
11. Amongst other things, the Board was satisfied that both Mr Thomas and ASAPL breached s 30-10(7) of the Code by failing to have adequate processes in place to ensure that:

(a) sufficient enquiries are made to ascertain the affairs of clients to enable the registered tax practitioner to be reasonably satisfied that ITRs prepared and lodged on behalf of its clients are correct; > > (b) taxation laws are applied correctly to clients' circumstances in relation to ITRs that ASAPL prepared and lodged on clients' behalf; and > > (c) statements made to the ATO on behalf of clients are true and correct.

12. The Board was satisfied that both Mr Thomas and ASAPL breached s 30-10(9) of the Code by not taking reasonable care in ascertaining the affairs of numerous clients in relation to preparing their ITRs for the 2019 and 2020 financial years. The Board determined ASAPL was reckless by contravening or disregarding taxation laws when it prepared ITRs on behalf of those clients, resulting in those clients having their ITRs adjusted and shortfall tax and penalties imposed.
13. Consequently, the Board was satisfied that Mr Thomas was not a fit and proper person as required by s 20-5(1) of the Act, having regard to, amongst other things, the fact that he misled the Board in relation to the termination of Jeremy's employment. The Board was also satisfied that ASAPL ceased to meet the tax practitioner registration requirement under s 20-5(3) of the Act on the basis that Mr Thomas, ASAPL's sole director and supervising agent, is not a fit and proper person. The Board was also satisfied that TAAPL ceased to meet the tax practitioner registration requirement under s 20-5(3) on the basis that its director, Mr Thomas, is not a fit and proper person.
14. Turning to the ATO's 'referral' and the mistakes uncovered after auditing the affairs of clients of the Applicants (as referred to in [22] and [28]-[29] above), it is accepted that Mr Thomas attempted to provide explanations for the mistakes, both in documents filed with the Tribunal and in his oral evidence. First, he stated that the Applicants had more than 3,000 clients and that only a very small sample, approximately 15 clients, were audited by the ATO and found to contain mistakes in the financial years ending 30 June 2019 and 2020. Secondly, Mr Thomas stated that the mistakes were due, in the main, to the Applicants trusting the clients were providing them with accurate information. He suggested that that was reasonable as the Applicants relied on the signed declaration in the ITRs that the information provided to the registered tax agent is true and correct. Besides, there were instances where he said the Applicants could not have known whether that was the case. For example, Mr Thomas stated a client had claimed deductions for his car expenses for work, but the ATO discovered that the client had been provided with a company car, which the Applicants were not informed about. With respect to other errors, Mr Thomas accepted that the Applicants did not always check the receipts as he said the Applicants were "not filing clerks".
15. Thirdly, Mr Thomas claimed some mistakes were not attributable to the Applicants as the clients had later amended their ITRs through other tax agents and the ATO portal did not update these details. Fourthly, he cited some examples which he claimed involved 'genuine' mistakes, including a client claiming a deduction for a donation where the gift deductible recipient status of the organisation had been changed from prior years and this had not been checked. Fifthly, he referred to cases which, according to Mr Thomas, involved the adoption of reasonably arguable positions with respect to the application of the tax laws, including a client nurse that had claimed a deduction for a counselling course as self-education expenses, but with which the ATO disagreed.
16. Additionally, Mr Thomas stated the Applicants had improved their processes following the cancellation of Jeremy's tax agent registration and now insisted on documentary evidence regarding expenses claimed as deductions. He also added that if clients did not produce the documents, the Applicants would no longer lodge their ITRs, but he conceded this was a recent development.

1. The Tribunal now turns to consider whether it is appropriate to grant stays having regard to the relevant considerations (see [10] above).
2. Regarding the Applicants' prospects of success in relation to the Decisions Under Review, the Applicants did not point to the existence of any cogent facts or the possibility of legal error that may be argued at the hearing which may lead to a different result including a reduction in the four-year preclusion period. That is, the Applicants failed to demonstrate, even at a high level, that they have sufficiently arguable cases: see Re Poidevin and Australian Securities and Investments Commission [2018] AATA 124, [39] - [40]. Mr Thomas could not refute the findings in relation to the Applicants having misled the Board in relation to Jeremy's employment status. Mr Thomas tried to defend the position by claiming he did terminate Jeremy's employment, but that was not the case, as Jeremy continued to be employed and paid by one of the Applicants. In light of this decision, it is unnecessary for me to make any further findings about whether Jeremy provided tax agent services, especially as there was limited evidence before me.
3. I accept that Mr Thomas was concerned for Jeremy's wellbeing. However, his misrepresentation to the Board about Jeremy's employment status was reckless and shows his lack of judgment. Accordingly, the Board was right to be concerned that Mr Thomas was not upfront and lacked integrity and character to be a fit and proper person under the Act. Furthermore, Mr Thomas' continued references to Jeremy's own situation with the Board as "an unfortunate incident" highlighted that he did not appreciate the seriousness of Jeremy's misconduct. Mr Thomas's unfounded view that the Board had a vendetta against him also lends credence to the Board's views that Mr Thomas did not take his own shortcomings seriously and sought to shift the blame to others.
4. Finally, notwithstanding the above explanations and assurances provided by Mr Thomas as to the mistakes in client's ITRs (see [31]-[33] above), and the possibility that Mr Thomas may have a few legitimate grounds, I concur with the Board's submissions that the Applicants will not be able to displace the findings that there were serious breaches under the Act, and therefore the prospects of success of the Applicants in relation to the Decisions Under Review are overall poor.
5. In relation to the consequences for the Applicants, Mr Thomas asserted that the Applicants would suffer irreparable reputational and business damage if the interim stays were not continued. However, he had little evidence to support these claimed adverse impacts, including on their franchised satellite offices and any staff and clients. When pressed to give details, Mr Thomas maintained that it was difficult to predict precisely what would happen and said that "the future is bleak". However, Mr Thomas revealed at the hearing that the clients of TAAPL and ASAPL had already been transferred to a newly established company controlled by Mr Jason Thomas, Mr Thomas' other son and also a registered tax agent.
6. Despite this, Mr Thomas maintained that as he was the senior tax practitioner who had built up the businesses and who the clients expected to see when they attended the office, his inability to practise if stays were not granted would likely detrimentally impact the businesses. He stated he was about 73 years old and was willing to work in the accounting industry for as long as he was able to do so.
7. The assertions by Mr Thomas as to reputational and business damage are to be given little weight especially as the evidence of Mr Thomas did not corroborate his claims of irreversible business damage. In any event, the likely consequences that the clients of the Applicants may choose another tax agent, unrelated to Mr Thomas, are due to the failures of the Applicants to adhere to the high standards of professionalism which the community is entitled to expect from a registered tax agent and which the Board is responsible for regulating. It is acknowledged that "the prospect of economic loss consequent upon regulatory action is inherent in the regulatory regime": see Le'Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890 at [32], citing Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185. Accordingly, this factor weighs against the Tribunal granting the stays.
8. The public interest considerations in the present case also weigh against the Tribunal granting the stays in the light of the regulatory regime for tax practitioners administered by the Board. For an individual to be eligible to be a registered tax agent, the Board must be satisfied that the individual is a "fit and proper person": s 20-5 of the Act. Also, the Board must have regard to specified criteria to determine whether an individual is a fit and proper person, most importantly, "whether the individual is of good fame, integrity and character": s 20-15 of the Act. I agree with the Board's submission that there is an overwhelming public interest in refusing the Stay Applications in the present case because of the serious nature of the Applicants' breaches and the recidivist nature of Mr Thomas. Clearly, Mr Thomas was on notice that the Board had undertaken several investigations and imposed multiple sanctions on himself and the other two Applicants, but despite this they continued to adopt a cavalier approach. The need to protect the public, including any prospective clients, and the preservation of the integrity of the tax profession strongly outweigh any possible damage to the Applicants.
9. I also agree with the emphasis placed by the Board in its submissions on the significant role played by tax agents in the tax system as important gatekeepers and conduits of the tax system, especially in the self-assessment system. The role of tax agents is not, for instance, confined to data entry of numbers served up by clients as allowable deductions, but necessarily entails tax agents carefully reviewing clients' affairs and advising them, at a minimum, to be compliant with the tax laws. In this regard, it is especially important that the public "is to be protected [against] the risk to the standing of the profession in the eyes of the public. The effective functioning of the tax agent profession is in the public interest ...[P]reservation of the general community's confidence in tax agents is of fundamental concern": Evans and Tax Practitioners Board [2019] AATA 1408 at [131] (Senior Member Furnell), citing G J Brown & Co Pty Ltd at Tax Practitioners Board [2016] AATA 740 at [82] (Senior Member Cotter). It follows that the public interest in maintaining community confidence in registered tax agents weighs against the Tribunal granting the stays.
10. I am not satisfied there would be any adverse consequences for the Board if stays were ordered as they may be made, in appropriate circumstances under the AAT Act, and do not undermine the Board's authority or administration under the Act as regards tax practitioners.
11. Finally, if the Applicants were to ultimately succeed, the Applications for Review would not be rendered nugatory. The Applicants could continue to practice as registered tax agents and notify clients and rebuild their businesses even though there may have been some disruption.

1. The consideration of the abovementioned factors weighs overwhelmingly against granting the stays. In particular, based on the limited materials before the Tribunal, I consider the Applicants' prospects of success to be poor, and the public interest considerations regarding the integrity of the tax agent registration regime would also not be served by granting stays.
2. The Tribunal refuses the Stay Applications and the interim stay order dated 12 August 2022, as varied on 26 August 2022, is discharged on 21 April 2023.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas

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